JOHN DOE AGENCY AND JOHN DOE GOVERNMENT AGENCY, APPLICANTS V. JOHN
DOE CORPORATION
No. A-552 (88-1083)
In the Supreme Court of the United States
October Term, 1988
Application to Recall and to Stay Mandate of the United States
Court of Appeals for the Second Circuit and to Stay Order of the
United States District Court for the Eastern District of New York
Pending Certiorari
Petition for a Writ of Certiorari of the Mandate of the United
States Court of Appeals for the Second Circuit
Pursuant to Rules 43 and 44 of the Rules of this Court and 28
U.S.C. 1651 and 2101(f), the Solicitor General, on behalf of John Doe
Agency and John Doe Government Agency, /1/ applies to this Court for
(1) a recall and stay, pending the disposition of a petition for a
writ of certiorari, of the mandate of the United States Court of
Appeals for the Second Circuit issued November 28, 1988, and (2) a
stay of the district court's order of December 12, 1988, on remand
from the court of appeals, requiring disclosure of the Vaughn index
prepared in this case. /2/ The lower courts have refused to stay
those orders. A petition for a writ of certiorari has already been
filed (No. 88-1083).
In the decision that the government has asked this Court to review
-- John Doe Corp. v. John Doe Agency, 850 F.2d 105 (2d Cir. 1988) --
the court of appeals rejected the government's justification for
withholding information pursuant to Exemption 7 of the Freedom of
Information Act (FOIA), 5 U.S.C. (& Supp. IV) 552(b)(7), and remanded
the case to the district court. /3/ According to the court of
appeals, the records at issue could not be withheld under Exemption 7
because, whether or not their release would interfere with law
enforcement proceedings, they were not "compiled for law enforcement
purposes."
Because the decision of the court of appeals did not require the
government to release any documents, we did not seek a stay in this
Court immediately after the court of appeals denied a stay of mandate
and issued its mandate on November 28, 1988. Now, however, the
district court has entered a disclosure order, and the court of
appeals has refused to stay that order. The requested order from this
Court is necessary (1) to prevent the disclosure of information
contained in the Vaughn index because such disclosure could reasonably
be expected to interfere with an important law enforcement
investigation; and (2) to avoid mooting a significant portion of the
decision of the court of appeals before the government can obtain this
Court's review. /4/
The decision of the court of appeals will seriously impair the
ability of numerous federal agencies to conduct their law enforcement
responsibilities. Many agencies collect through routine monitoring
functions information that later becomes an essential part of a
criminal (or other law enforcement) investigation. The panel's ruling
would require federal agencies to segregate and disclose all such
records or information even though, at the time of the FOIA request,
they were an integral part of a legitimate criminal (or other law
enforcement) investigation. Such disclosure would be quite disruptive
to law enforcement proceedings at the investigative stage.
Attached to this application is a copy of the petition for a writ
of certiorari, which includes in its appendix the opinion of the court
of appeals, the opinion of the district court (with the names of the
parties deleted), the order of the court of appeals denying the
petition for rehearing and suggestion of rehearing en banc, and the
judgment of the court of appeals (issued as mandate November 28,
1988). Also attached is the order of the district court dated
December 12, 1988 (with the names of the parties deleted), requiring
disclosure of the Vaughn index. We are informed that the Second
Circuit denied a stay of that order earlier today, January 10, 1989,
but we have not yet received a written order from the court of
appeals. Other documents pertinent to this application are contained
in the joint appendix that was filed under seal in the court of
appeals. We have supplied a copy of that joint appendix under seal to
the Clerk of this Court. We have also supplied to the Clerk under
seal the declaration of Assistant United States Attorney Sean O'Shea,
dated December 9, 1988.
STATEMENT
1. In 1978, John Doe Agency exchanged letters with John Doe
Corporation (Corporation or respondent) concerning the allocation of
certain costs incurred by Corporation under its contracts (see Pet.
App. 2a). In a letter dated May 2, 1978, John Doe Agency asserted
that those costs were wrongly charged to a technical overhead account
when they should have been charged directly to certain government
contracts (ibid.). Corporation responded on July 11, 1978, defending
its allocation (ibid.).
The issue was revived eight years later, in 1986, during a grand
jury investigation of possible fraudulent practices by Corporation
(see Pet. App. 2a). That investigation was opened on July 18, 1985,
with Corporation named as a subject. The grand jury issued its first
subpoena to Corporation on February 21, 1986. Corporation made a FOIA
request on September 30, 1986, to John Doe Agency for "all documents,
(etc.) that are related in any way to the subject matter of the (1978)
correspondence between (John Doe Agency) and (Corporation)" (C.A. App.
1). John Doe Agency denied the request on November 18, 1986, "(u)pon
the advice and direction" of an Assistant United States Attorney (id.
at 25). On November 20, 1986, the requested records were transferred
from John Doe Agency to John Doe Government Agency, a federal law
enforcement agency.
On February 3, 1987, Corporation made a FOIA request to John Doe
Government Agency for "all documents that are related in any way to
the subject matter of the (1978) correspondence between (John Doe
Agency) and (Corporation)" (C.A. App. 38). John Doe Government Agency
denied the request, relying on Exemption 7 (id. at 40). Corporation
filed an administrative appeal (id. at 41). When its appeal was not
ruled on within the prescribed time, Corporation filed suit in the
United States District Court for the Eastern District of New York (id.
at 9, 11).
2. In the district court proceedings, the government opposed
disclosure on the basis that the documents are exempt under Exemption
7(A) and 7(E) (see C.A. App. 106). The court ordered the government
"to prepare a Vaughn index and to answer plaintiff's interrogatories
and to submit these documents to the court for an in camera
examination" (id. at 109-110). After conducting the in camera
examination, the district court held that the defendants could not be
required to turn any of the documents over to Corporation because
"there is a substantial risk that disclosure of any of this material,
the documents, the Vaughn index and the answers to (Corporation's)
interrogatories, would jeopardize the grand jury proceeding" (Pet.
App. 14a).
3. On June 23, 1988, the court of appeals ruled that Exemption 7
did not protect the documents from disclosure because they were not
"compiled for law enforcement purposes" (Pet. App. 7a-8a) -- a phrase
the court construed to mean originally obtained or generated for law
enforcement purposes. The court's entire analysis of this important
issue was as follows (ibid.):
The district court held that the documents were exempt under
FOIA Subsection (b)(7), which exempts from disclosure "matters
that are . . . records or information compiled for law
enforcement purposes, but only to the extent that the production
of such law enforcement records or information() could
reasonably be expected to interfere with enforcement
proceedings." Although the district court concluded that
disclosure would "jeopardize" the "grand jury proceedings, it
made no finding as to whether the records sought were "compiled
for law enforcement purposes." Such a finding is essential to a
valid claim of exemption under Subsection (b)(7). * * *
In the instant case, the documents requested were generated
by Agency independent of any investigation in the course of its
routine monitoring of Corporation's accounting procedures with
regard to Corporation's defense contracts. The records were
compiled in 1978, seven years before the investigation began in
1985. They were thus not "compiled for law enforcement
purposes" and are not exempted by Subsection (b)(7).
The 1974 amendments to the FOIA make it clear that a
governmental entity cannot withhold materials under the FOIA on
the ground that materials that were not investigatory records
when compiled have since acquired investigative significance.
Originally, the FOIA exemption in question applied to
"investigatory files." In 1974, however, Congress substituted
the word "records" for "files" to insure that documents produced
in the routine course of government operations would not be
withheld under Subsection (b)(7) merely because they had been
commingled with investigative materials generated later in the
course of a law enforcement proceeding. (NLRB v.) Robbins Tire
& Rubber (Co.), 437 U.S. (214,) 227-30 ((1978)); see also (FBI
v.) Abramson, 456 U.S. (615,) 626-27 ((1982)). The attempt in
the instant case to withhold documents generated in the course
of routine audits because they are now part of an investigatory
file thus contravenes the obvious intent of the 1974 amendments
to FOIA. See Hatcher (v. United States Postal Service), 556
F.Supp. (331,) 335 ((D.D.C. 1982)).
We realize that compliance with the FOIA may compel the
government to disclose matters that are ordinarily beyond the
scope of discovery in criminal investigations and thus may
enable a potential defendant to prepare responses to the
investigation and to construct a defense to criminal charges.
That is a concern that should be addressed to Congress, however.
4. The government filed a petition for rehearing and suggestion of
rehearing en banc, which the court of appeals denied on November 8,
1988 (Pet. App. 17a). The government then filed a motion for a stay
of the issuance of the mandate, and the court of appeals denied that
motion on November 28, 1988.
5. On December 12, 1988, the district court held that the decision
of the court of appeals required that the government turn over the
Vaughn index to Corporation. The district court stayed its order
requiring disclosure until December 16, 1988, so that the government
could seek a stay from the Second Circuit. The government filed a
notice of appeal from the district court's order on December 13, 1988,
and filed a motion for stay in the Second Circuit on December 16,
1988. /5/ On December 29, 1988, the government filed a petition for a
writ of certiorari seeking review of the Second Circuit's June 1988
decision. On January 10, 1989, the Second Circuit denied the
government's motion for a stay.
ARGUMENT
The district court's December 12 order requires that the government
turn over to Corporation the Vaughn index prepared in this case.
Disclosure of that material would be likely to interfere with an
important law enforcement investigation. /6/ Moreover, disclosure of
the Vaughn index would moot that portion of the case before this Court
has a chance to review it. And, unless this Court stays and recalls
the mandate of the court of appeals, the district court may order
release of the underlying documents, thus mooting the entire case.
On an application for a stay pending the filing of a petition for a
writ of certiorari, the applicant must show that (1) there is a
"reasonable probability" that four Justices will consider the
certiorari issue sufficiently meritorious to grant certiorari; (2)
there is a "fair prospect" that a majority of the Court will conclude
that the decision below on the merits was erroneous; and (3) that
irreparable harm will result from the denial of a stay. In addition,
in close cases, it may be appropriate to balance the equities, by
exploring the relative harms to the parties and to the public at
large. Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, J.,
in chambers).
The existence of irreparable harm from the orders that the
government seeks to stay is not open to reasonable dispute, nor is
there any basis to doubt that the balance of equities cuts decidedly
in favor of the grant of a stay. As stated in the declaration of Sean
O'Shea, dated December 9, 1988, disclosure of the Vaughn index, as
required by the district court's order of December 12, 1988, can
reasonably be expected to interfere with an ongoing law enforcement
investigation. /7/ Moreover, the required disclosure would render
moot that part of the decision of the court of appeals that requires
disclosure of the Vaughn index and thereby prevent the government from
seeking this Court's review of that part of the decision -- an
irreparable injury that supports the grant of a stay. See Providence
Journal Co. v. FBI, 595 F.2d 889, 890 (1st Cir. 1979). Granting the
requested stay will serve the public interest by preventing premature
disclosure that will harm an ongoing criminal investigation until this
Court has had an opportunity to review the important legal issue
involved in this case. And, as the court of appeals itself expressly
recognized (Pet. App. 8a), the decision below would provide respondent
with information earlier than provided by the rules governing criminal
discovery; that interest in premature criminal discovery -- the only
interest of respondent's that is at issue with respect to this
application -- deserves no weight in the balance of equities.
The only debatable question, therefore, is whether the requisite
fair prospect of a grant of certiorari and reversal exists. Although
the decision below does not conflict with any decision of another
court of appeals, we submit that it is so plainly wrong, and that its
deleterious effect on law enforcement would be so great, that review
by this Court is clearly warranted. /8/
1. The statute does not use the phrase "originally compiled," nor
does the word "compiled" itself connote a distinction between the
original act of obtaining information and the act of gathering it from
other sources -- inside or outside the government. /9/ To the
contrary,
The introduction of such a narrowing term ("originally") would
undercut Congress' deliberate selection of the word "compiled"
for usage in the statute. According to Websters' Ninth
Collegiate Dictionary, the word "compile" means:
to collect and edit into a volume; to compose out of
materials from other documents; to run (as a program) through a
compiler; to build up gradually . . .
(1985). A compilation of information or materials "compiled"
for law enforcement purposes therefore can be "composed out of
materials from other documents" -- including other documents
already generated or collected by the government for non-law
enforcement purposes. Therefore, materials originally drafted,
generated, or even compiled for one purpose -- even if that
purpose is benign -- subsequently can be "compiled for law
enforcement purposes."
Gould Inc. v. GSA, 688 F. Supp. 689, 697-698 (D.D.C. 1988).
The opinion of the court of appeals in the present case does not
accord the word "compiled" its plain meaning or even acknowledge that
the word, in ordinary usage, refers to an act that can be performed
many times on the same documents or information. /10/ For example,
the court stated (Pet. App. 7a) that the fact that "(t)he records were
compiled in 1978" proved, without more, that they were "not 'compiled'
for law enforcement purposes'" -- a theory analogous to saying, for
example, that opinions of this Court collected in a constitutional law
casebook could not have been compiled for the purpose of teaching a
course in constitutional law because they were not originally
generated for that purpose. Likewise, the court referred to the
records in this case (Pet. App. 7a-8a) as "materials that were not
investigatory records when compiled (but) have since acquired
investigative significance." Yet the materials most assuredly did have
investigative significance when compiled by John Doe Government
Agency. Only by giving the word "compiled" something other than its
ordinary meaning could the court of appeals reach the conclusion it
did. Cf. Beech Aircraft Corp. v. Rainey, No. 87-981 (Dec. 12, 1988),
slip op. 9-10 (criticizing lower court's interpretation of a rule of
evidence because that interpretation unjustifiably departed from the
precise words used in the rule and their dictionary definition).
2. The court of appeals also relied on the legislative history of
the 1974 amendments to FOIA to support its reasoning. Even if we
assume that the court of appeals was correct in looking to the
legislative history at all, despite the plain language of the statute
supporting the government's position, the court seriously
misinterpreted the legislative record.
In Ditlow v. Brinegar, 494 F.2d 1073 (D.C. Cir. 1974), the court
held that everything found in an investigatory file compiled for law
enforcement purposes was automatically exempt from mandatory
disclosure under the then-current version of Exemption 7, 5 U.S.C.
(1970 ed.) 552(b)(7). Fearing that agencies would use that rule to
commingle otherwise nonexempt material with exempt material in law
enforcement files, Congress amended the statute in 1974 to overrule
Ditlow (and three other D.C. Circuit decisions). See generally NLRB
v. Robbins Tire & Rubber Co., 437 U.S. 214, 227-230 (1978) (surveying
legislative history). Congress did not, however, change in any way
the statutory phrase "compiled for law enforcement purposes." Rather,
it changed the description of the exempted material from
"investigatory files compiled for law enforcement purposes" (5 U.S.C.
(1970 ed.) 552(b)(7) (emphasis added)) to "investigatory records
compiled for law enforcement purposes" (5 U.S.C. (1982 ed.) 552(b)(7)
(emphasis added)). /11/ In addition, Congress changed the status of
having been "compiled for law enforcement purposes" from a sufficient
condition for withholding to a necessary condition, adding the further
requirement that the records meet one of six specific criteria.
The clear thrust of the 1974 amendments is to make an agency and a
court look at each individual record and to determine whether
withholding that record is justified by one of six specific policies.
In that way, unwarranted withholding by "commingling" is prevented.
The court of appeals devised a completely dissimilar way to prevent
withholding by "commingling," i.e., to construe the word "compiled" to
mean "originally compiled." Yet the legislative history shows very
plainly that Congress had another method altogether in mind for
achieving its desired -- and quite different result. Congress wanted
to do away with broad categorical determinations and substitute
record-specific examination, yet the court of appeals has interpreted
Congress's action as a mandate to engage in broad categorical
determinations and to release records that fit precisely within the
categories that Congress fashioned. That is a serious error. /12/
See generally Gould, 688 F. Supp. at 702.
3. The court of appeals essentially acknowledged that its opinion
led to an anomalous result, but the court suggested that it was only
following the dictates of the statute (Pet. App. 8a):
We realize that compliance with the FOIA (as interpreted by
the court of appeals) may compel the government to disclose
matters that are ordinarily beyond the scope of discovery in
criminal investigations and thus may enable a potential
defendant to prepare responses to the investigation and to
construct a defense to criminal charges. That is a concern that
should be addressed to Congress, however.
That reasoning, which would be unassailable if the court had indeed
reached a result compelled by the statute's plain language or shown by
the legislative history to be Congress's clear intention, rings hollow
in light of the court's departure from the plain language of the
statute and its adoption of an approach that is not supported by the
legislative history. Cf. FBI v. Abramson, 456 U.S. 615, 625 n.7
(1982).
Moreover, the court's reasoning markedly departs from the approach
that this Court took in FBI v. Abramson, supra. The issue in that
case -- closely related to the issue here -- was whether information
originally compiled for law enforcement purposes and meeting the other
criteria of Exemption 7 lost its exempt status when it was recompiled
for non-law-enforcement purposes. In answering that question in the
negative, the Court reasoned that the statutory language and
legislative history were ambiguous and that therefore the Court would
answer the question presented by reference to "the intention of
Congress, * * * the structure of the Act, and * * * the purposes of
the statute" (456 U.S. at 625 (footnote omitted)). Significantly, in
assessing those guides to Congress's intent, the Court specifically
ruled that "(t)he enumeration of (six) categories of undesirable
consequences (in Exemption 7) indicates that Congress believed the
harm of disclosing this type of information would outweigh its
benefits" (id. at 627-628). The Court found "nothing to suggest, and
no reason for believing, that Congress would have preferred a
different outcome simply because the information is now reproduced in
a non-law-enforcement record" (id. at 628).
The rationale of Abramson indicates that "compiled for law
enforcement purposes" is not to be construed as a high, or highly
technical, barrier to claims of exemption. Rather, in light of the
1974 amendments, the emphasis should be placed on the six criteria
that Congress specified as prerequisites to withholding. The
requirement that records or information be "compiled for law
enforcement purposes" is not meaningless, but neither is it to be
construed in a restrictive or non-functional way. To the extent that
there is ambiguity in that statutory requirement as applied to a
particular case, Abramson teaches that it should be resolved in favor
of deeming a particular record to be a law enforcement record and
disclosing it or not disclosing it depending on the application of
subsections (A)-(F) of Exemption 7.
Congress has recently expressed approval of the practical approach
adopted by this Court in Abramson. See S. Rep. 98-221, 98th Cong.,
1st Sess. 23 (1983) (containing pertinent discussion and citing
Abramson twice with apparent approval). Exemption 7, as amended in
1986, applies to "records or information compiled for law enforcement
purposes." The amendment plainly is designed "to ensure that sensitive
law enforcement information is protected under Exemption 7 regardless
of the particular format or record in which it is maintained." Ibid.
(emphasis added). /13/ Congress's most recent view of how Exemption 7
is to be applied is thus very much at odds with the hypertechnical
approach of the court of appeals in this case. /14/
The court's decision is also at odds with earlier pronouncements of
this Court concerning the purposes of Exemption 7. In NLRB v. Robbins
Tire & Rubber Co., 437 U.S. at 224-225 (citations omitted), this Court
summarized those purposes:
In originally enacting Exemption 7, Congress recognized that law
enforcement agencies had legitimate needs to keep certain
records confidential, lest the agencies be hindered in their
investigations or placed at a disadvantage when it came time to
present their cases. Foremost among the purposes of this
Exemption was to prevent "harm (to) the Government's case in
court" * * * by not allowing litigants "earlier or greater
access" to agency investigatory files than they would otherwise
have * * *.
See also Alyeska Pipeline Service Co. v. EPA, 856 F.2d 309, 313 (D.C.
Cir. 1988). Such "earlier or greater access" is precisely what the
court of appeals has given respondent in this case -- as the court
acknowledged (Pet. App. 8a).
4. Even if there were more substantial grounds to support the
decision of the court of appeals, the issue presented is of such
importance that it would merit this Court's review. If the decision
of the court of appeals stands, it will seriously impair the ability
of numerous federal agencies to conduct their law enforcement
responsibilities. Many agencies -- such as those involved with
defense or other government contracts, the Drug Enforcement
Administration, and the Internal Revenue Service -- collect through
routine monitoring functions information that later becomes an
essential part of a criminal (or other) law enforcement investigation.
/15/
The ruling of the court of appeals would require federal agencies
to segregate and disclose all such records or information even though
those records or information were, at the time of the FOIA request, an
integral part of a legitimate, ongoing criminal (or other law
enforcement) investigation. /16/ Such disclosure would prematurely
alert potential defendants to the existence of an investigation,
identify strengths and weaknesses of the government's case, and
disclose the specific focus of a grand jury (or other) investigation.
That is precisely why Congress has refrained from authorizing
premature criminal discovery in any other context, and we submit it
has not done so here. /17/
Before the Freedom of Information Act is to be construed to make so
serious an inroad on effective law enforcement -- in the major
investigation underlying this case and in many others as well -- this
Court's attention is appropriate and necessary. Because the question
presented by this case warrants a grant of certiorari, and because
factors bearing on the propriety of a stay cut clearly in favor of
granting relief, a stay should be granted pending the disposition of
the government's petition for a writ of certiorari.
CONCLUSION
The mandate of the Second Circuit should be recalled and stayed,
and the district court's disclosure order should be stayed, pending
the disposition of a petition for a writ of certiorari.
Respectfully submitted.
CHARLES FRIED
Solicitor General Department of Justice Washington, D.C. 20530
(202) 633-2217
JANUARY 1989
FOOTNOTES
/1/ The papers in this case were sealed by order of the court of
appeals. In its public opinion, the court of appeals refers to the
defendants, which are entities of the federal government, as John Doe
Agency and John Doe Government Agency. We continue those designations
in this application.
/2/ The Vaughn index (see Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.
1973), cert. denied, 415 U.S. 977 (1974)) describes the documents that
are being withheld by the Government pursuant to Exemption 7 of the
Freedom of Information Act, 5 U.S.C. (& Supp. IV) 552(b)(7). The
index was presented to the district court in camera.
/3/ Exemption 7 exempts from mandatory disclosure "records or
information compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records or
information" gives rise to one or more of six specified harms. 5
U.S.C. (& Supp. IV) 552(b)(7). In the present case, the district
court determined that disclosure of the requested records, or even the
Vaughn index, "could reasonably be expected to interfere with
enforcement proceedings" (5 U.S.C. (Supp. IV) 552(b)(7)(A)).
/4/ The case will certainly become moot in part, and may become
entirely moot (if the district court enters orders requiring
disclosure of the underlying documents), through the release of
documents if the Court denies the stay that we are hereby requesting.
The case may also become moot if the law enforcement investigation of
John Doe Corporation terminates or if the grand jury indicts John Doe
Corporation and the requested documents are made available through
criminal discovery.
/5/ The appeal from the district court's disclosure order is
predicated on our belief that the June 1988 decision of the court of
appeals (850 F.2d 105), on which the district court's order is based,
is incorrect. If our appeal becomes moot because this Court denies
the stay that we are now requesting and the Vaughn index is released,
or if this Court does not ultimately reverse the Second Circuit's June
1988 decision, we will dismiss the appeal from the district court's
order of December 12, 1988.
/6/ The district court so determined, and the court of appeals did
not disagree. Instead, the court of appeals regarded that
consideration as irrelevant to the proper disposition of this case.
/7/ Such disclosure would reveal to Corporation information from
which it can prematurely ascertain the basis of the ongoing
investigation. Release of the Vaughn index could reasonably be
expected to (1) "provide plaintiff with valuable clues concerning the
grand jury's strategy and the direction of its inquiry" (O'Shea
declaration 2); (2) "apprise plaintiff, by negative inference, of
types or classes of documents which may not yet have been reviewed by
the grand jury, thereby creating the potential for such documents to
be placed permanently beyond the grand jury's reach and hindering its
investigation" (ibid.); and (3) "create the potential for plaintiff
to * * * 'tailor its responses to Government's inquiries so as to
provide the least possible relevant information * * * (thereby
tending) to frustrate the (grand jury's) proceedings'" (ibid. (quoting
Fedders Corp. v. FTC, 494 F. Supp. 325, 329 (S.D.N.Y.), aff'd mem.,
646 F.2d 560 (2d Cir. 1980))).
/8/ The decision of the court of appeals does conflict with the
recent decision in Gould Inc. v. GSA, 688 F. Supp. 689 (D.D.C. 1988),
in which Judge Sporkin analyzed the issue carefully and at length, and
reached the opposite conclusion from that reached by the court of
appeals, and the even more recent decision in Raytheon Co. v.
Department of the Navy, Civ. No. 88-0094 (D.D.C. Jan. 5, 1989), slip
op. 8-9. See also Fedders Corp. v. FTC, supra. But see Hatcher v.
United States Postal Service, 556 F. Supp. 331, 335 (D.D.C. 1982);
Goldschmidt v. United States Dep't of Agriculture, 557 F. Supp. 274,
276 (D.D.C. 1983).
/9/ Under the analysis of the court of appeals, a federal law
enforcement agency such as John Doe Government Agency "compiles"
auditing records for law enforcement purposes when it gets them from,
for example, Price Waterhouse or Arthur Andersen, but not when it gets
them from another government agency, such as John Doe Agency. Such a
rule hardly comports with the plain meaning of the word "compile."
/10/ This Court, by contrast, has specifically recognized -- in the
context of Exemption 7 -- that documents can be compiled more than
once. See FBI v. Abramson, 456 U.S. 615, 622 n.5 (1982) (rejecting
argument "that information admittedly compiled in a law enforcement
record loses its exemption when recompiled").
/11/ The statute has since been further amended, in an effort to
expand its reach, to cover "records or information compiled for law
enforcement purposes," without any requirement that the records or
information be "investigatory" (5 U.S.C. (Supp. IV) 552(b)(7)
(emphasis added)). See generally Attorney General's Memorandum on the
1986 Amendments to the Freedom of Information Act 5-9 (1987)
(summarizing change to Exemption 7 threshold test, its legislative
history, and its proper interpretation).
/12/ In essence, the court of appeals has concluded that reading
"compiled" to mean "originally compiled" will serve Congress's
objective of preventing withholding by commingling and therefore must
be the proper interpretation of the statute. "But no legislation
pursues its purposes at all costs. Deciding what competing values
will or will not be sacrificed to the achievement of a particular
objective is the very essence of legislative choice -- and it
frustrates rather than effectuates legislative intent simplistically
to assume that whatever furthers the statute's primary objective must
be the law." Rodriguez v. United States, 480 U.S. 522, 525-526 (1987).
Here, Congress did not merely prohibit exemption by commingling; it
also indicated the criteria by which records qualifying for the
exemption are to be differentiated from the commingled records that do
not qualify -- criteria that differ substantially from the broad-brush
approach of the court of appeals.
/13/ This report, which concerned a predecessor bill to what
eventually became the 1986 amendments to Exemption 7, is recognized as
authoritative concerning the meaning of those amendments. See King v.
Department of Justice, 830 F.2d 210, 229 n.141 (D.C. Cir. 1987); 132
Cong. Rec. S14296 (daily ed. Sept. 30, 1986) (statement of Sen. Leahy)
(Senate Report 98-221 "sets out the legislative history which should
be considered to determine the scope of the section we are adopting in
this bill").
/14/ The 1986 amendments, which apply fully to this case, were
"intended to broaden the reach of this exemption and to ease
considerably a Federal law enforcement agency's burden in invoking
it." Irons v. FBI, 811 F.2d 681, 687 (1st Cir. 1987) (quoting 132
Cong. Rec. S16504 (daily ed. Oct. 15, 1986) (statement of Sen.
Hatch)). See also, e.g., Arenberg v. DEA, 849 F.2d 579, 581 (11th
Cir. 1988) ("It is quite clear * * * that Congress did not intend to
jeopardize law enforcement activities by the Freedom of Information
Act.").
/15/ The federal agencies that have expressed to us their concerns
about the harmful impact that the decision below could have on their
ability to enforce the law include the Consumer Product Safety
Commission, the Defense Contract Audit Agency, the Department of
Commerce, the Department of Education, the Department of Labor, the
Department of the Navy, the Department of State, the Department of the
Treasury (on behalf of the Bureau of Alcohol, Tobacco, and Firearms,
the Customs Service, and the Office of Foreign Assets Control), the
Federal Bureau of Investigation, the Federal Trade Commission, the
Internal Revenue Service, the Postal Service, the Small Business
Administration, and the Antitrust, Civil, and Criminal Divisions of
the Department of Justice.
/16/ Although the records at issue in this case all came to the
agency that now has them from a single other government agency, that
will not necessarily be true in future cases in which targets of law
enforcement requests seek premature criminal discovery under the
decision below. The decision of the court of appeals presumably would
require the law enforcement agency to sift through its files, which
may come from many sources, and determine the original source of each
record in order to determine whether it was "compiled" (in the sense
in which the court of appeals used that word) originally for law
enforcement purposes. That task -- which serves no policy goal that
Congress could conceivably have had in mind -- could take on extremely
burdensome proportions.
/17/ In addition, although this case directly concerns Exemption
7(A), the panel's ruling construes the threshold requirement to all of
Exemption 7, and thus would presumably prevent the government from
invoking the protections provided by the other subsections of
Exemption 7, including the protection of confidential informants, the
privacy of innocent individuals named in law enforcement records, and
the protection of the lives or physical safety of law enforcement
officers or others identified in such records. See 5 U.S.C. (Supp.
IV) 552(b)(7)(B)-(F).
APPENDIX